BOARD OF HEALTH OF WOBURN vs. GEORGE SOUSA & others.

CUTTER, J. This is a bill in equity filed on November 27, 1957, by the board of health. The defendants appeal from a final decree permanently enjoining them from keeping swine on certain premises in Woburn and from transporting offensive substances through the streets of Woburn, without in each instance obtaining a permit as required by regulations of the board. [Note 1] "Since the judge made no report of the material facts, the entry of the decree imported a finding of every fact essential to sustain it and within the scope of the pleadings." Marlowe v. O'Brien, 321 Mass. 384, 386. The evidence, mainly oral, is reported. We cannot say that the judge would have been plainly wrong in concluding (1) that the pertinent regulations had been duly adopted; and (2) that the defendants since about October 30, 1957, had been keeping about one thousand swine on their premises and transporting offensive materials through the streets without obtaining permits.

1. Although the board of health had authority to institute a suit for the city, it should have been brought in the name of the city. An amendment may be allowed for this purpose, even though the point is not now raised. See Board of Health of Wareham v. Marine By-Products Co. 329 Mass. 174, 175.

2. The board of health of a city or town, pursuant to at least three legislative delegations of power, may require a

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permit for keeping swine. G. L. c. 111, Sections 31, 122, 143, as amended. See Sections 146, 147, as amended. [Note 2]

The authority to make the regulation has usually been found in Section 143, or in one of its predecessors. In Quincy v. Kennard, 151 Mass. 563, it was held within the power of a board of health to require a permit for the keeping of swine as a condition of doing what could have been absolutely prohibited. In considering comparable regulations in Lexington v. Miskell, 260 Mass. 544, 546-547, and in Waltham v. Mignosa, 327 Mass. 250, 252-254, Section 31 was referred to in addition to Section 143. The Lexington case also referred to Section 122. References by the court to the remedy provided by Section 147 perhaps imply that the respective regulations were considered as adopted under Section 143. In Swansea v. Pivo, 265 Mass. 520, 521, 523, the conduct of the board in enforcing its regulation showed that it was acting under Sections 143 and 146, regardless of whether it had adopted its regulation under Section 31, Section 122, or Section 143. In Cochis v. Board of Health of

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Canton, 332 Mass. 721, 722, this court (at p. 724), while recognizing that Section 31 authorized "boards of health to make reasonable regulations," stated that Section 143 was a section authorizing "such boards to make specific prohibitions" (emphasis supplied). It indicated that it was under Section 143 that "the board presumably acted in promulgating . . . regulations" absolutely prohibiting piggeries. Cf. Board of Health of Wareham v. Marine By-Products Co. 329 Mass. 174, 178, a proceeding under Section 143, not involving piggeries.

The regulations of the Woburn board of health were adopted April 27, 1953. When published, reference was made to Sections 31, 122, and 143, among other sections of c. 111, as providing authority for the regulations.

Prior to St. 1920, c. 591, Section 17, authority to regulate piggeries by a permit could have been found in the predecessors of Sections 122 and 143 (see R. L. c. 75, Sections 65, 91). Section 17, by enacting what is now c. 111, Section 31, provided a comprehensive, separate, additional source of authority for health regulations. The new section had been recommended by the commission (see St. 1919, c. 248) to complete the work of revising and codifying the laws relating to towns. Its report (1920 Senate Doc. No. 2, p. 14) said, "The provisions of law are such that considerable doubt has arisen with regard to the powers of the board of health to make regulations. In order to make matters clear the commission recommends the passage of section 24 of the general bill" (p. 27) [Note 3] attached to the commission's report.

In the present case, the board of health has not proceeded to enforce its regulation under Sections 143 and 146. No order of prohibition appears to have been served upon the defendants under Section 146, which provides one method for enforcing a regulation adopted under Section 143. We therefore consider

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whether these regulations could have been adopted under Section 31 and Section 122, as well as under Section 143, and whether, regardless of the section under which they were adopted, they can be enforced in equity under G. L. c. 111, Section 187, [Note 4] without compliance with Sections 143 and 146.

In Malden v. Flynn, 318 Mass. 276, 277-279, it was held that after the enactment in 1937 of the specific provisions of Section 31A (see amendment by St. 1945, c. 423) and Section 31B (inserted by St. 1937, c. 282) the "authority of boards of health to prohibit absolutely . . . by a general regulation the transportation of garbage . . . formerly possessed by virtue of what is now . . . Section 122, no longer exists." This court took the position that the subject matter was thereafter controlled by the very specific provisions on this subject of Section 31A and Section 31B which had in effect (at p. 278) "carved out of the general power of boards of health over nuisances . . . the power to deal with the . . . transportation of garbage, and the authority of boards over this particular subject." [Note 5] The Malden case suggests the question whether Sections 143, 146, and 147 and related sections so completely deal with noisome trades like piggeries as to preclude the adoption of regulations regulating, but not prohibiting, such trades under Sections 31 and 122. We need not decide whether complete prohibition of all piggeries can be dealt with only under Section 143. There is, in any event, no express statutory indication that regulation of piggeries, by requiring permits, may not be undertaken under Sections 31 and 122. As has been noted, Section 31 was passed as legislation of broad and general scope, after the predecessors of Sections 143, 146, and 147 had been on the statute books for many years.

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The legislative history (see footnote 3, supra, and the text to which it relates) shows no purpose to limit its scope. See Brielman v. Commissioner of Pub. Health of Pittsfield, 301 Mass. 407, 409, which refers to Section 17 of the 1920 statute as establishing a "broad power" which is "not subject to the limitations of earlier rule making powers of boards of health."

The requirement of a permit is a traditional method of regulation, and a regulation calling for a permit certainly may be adopted where there exists some statutory delegation of authority (as here may be found in Section 143) to prohibit absolutely. See Butler v. East Bridgewater, 330 Mass. 33, 36-38, where, as here, the power to prohibit existed. In that case, instead of an absolute prohibition, the town required only a permit and invested the licensing authority "with quasi judicial authority to determine the facts and to pass upon the application [for a permit] in each instance under the serious sense of responsibility imposed upon them by their official positions and the delicate character of the duty entrusted to them." In that case, also, the court distinguished Commonwealth v. Maletsky, 203 Mass. 241, Goldstein v. Conner, 212 Mass. 57, and Kilgour v. Gratto, 224 Mass. 78, on grounds which are applicable in the present case. It is immaterial, in determining whether a regulation requiring a permit for a piggery may be adopted under Sections 31 and 122, that absolute statutory power to prohibit piggeries (which reinforces the power to require a permit) exists most clearly under another section (Section 143). We hold that the regulations relating to piggeries (see footnote 1, supra) could properly have been adopted under Section 31 and Section 122, and that enforcement of such regulations is permitted under Section 187 (see footnote 4, supra).

The provisions of Sections 146 and 147 in terms apply only to orders under Section 143. See DeVincent v. Public Welfare Commn. of Waltham, 319 Mass. 170, 171. We hold that these sections have no necessary application to the enforcement of general regulations valid under Sections 31 and 122, unless the method of enforcement in fact adopted by the appropriate public authorities is that under Section 146.

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3. The evidence would justify findings that the defendants moved some one thousand pigs to the premises here in question, purchased by them in late October or November, 1957, without obtaining a permit to keep them there. Applications for permits to keep the pigs on these premises were not filed until February, 1958, nearly three months after this bill was filed. The board of health has taken no action on these applications.

Obviously, if the board of health should fail to act upon the defendants' applications, the injunction ordered by the final decree would give to the board's inaction the effect of a complete prohibition without the consideration by the board impliedly called for by the regulation. A board which has power to grant or withhold a permit must decide "in a fair, judicial and reasonable manner upon the evidence as presented . . . keeping in mind the objects" of the applicable regulation. Butler v. East Bridgewater, 330 Mass. 33, 38. Complete inaction may be as arbitrary as affirmative action. To be sure, a board which does not act promptly may be compelled to act by mandamus. G. L. c. 249, Section 5 (as amended through St. 1943, c. 374, Section 2). Also, if the board's decision [Note 6] reveals errors of law, the remedy by certiorari is available. Butler v. East Bridgewater, 330 Mass. 33, 39. See Tracht v. County Commrs. of Worcester, 318 Mass. 681, 685-687. Of course, in passing upon applications for a permit, the board of health may take into account all relevant considerations of public health, safety, and welfare which bear upon whether, in an expanding community, piggeries in addition to any now permitted should be conducted. It is improper, however, for a board simply to fail to act at all on applications for permits.

The defendants contend that the board of health was determined not to grant a permit to the defendants and that evidence to that effect was improperly excluded. See, however, Swansea v. Pivo, 265 Mass. 520, 523. The evidence was irrelevant here in a proceeding to enforce a regulation

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which the defendants had disregarded until they had confronted the board of health with the accomplished fact of the presence of one thousand pigs on the land. As to the future, it is not to be assumed that the board of health will not apply proper principles, now that those principles have been indicated, in considering any appropriate applications for permits after there has been compliance by the defendants with the regulation. Brookline v. Co-Ray Realty Co. Inc. 326 Mass. 206, 214, and cases cited. In view of the defendants' conduct, this is not an occasion where we should impose conditions on injunctive relief. Cf. Jurewicz v. Jurewicz, 317 Mass. 512, 517; Kressler v. Flynn, 323 Mass. 610, 612-613.

4. The decree is affirmed. The city is to have costs of this appeal.

So ordered.